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Defamation Pre action Protocol.

The Defamation Pre Action Protocol is a code of practice which the parties to a dispute should follow when litigation needs to be considered.  The protocol encourages both parties to disclose information to enable each other to understand their case and to promote the prospect of an early resolution. If a claim proceeds to litigation the Court can consider the extent to which the protocol has been followed.

Letter of Claim

The claimant should notify the defendant of his or her claim in writing at the earliest opportunity. The letter of claim must  include the following information:

  • Name of the claimant;
  • Sufficient  details to identify the publication or broadcast which contain the words complained of;
  • The words complained of;
  • The words complained of, the date of publication and a copy of the transcript of the words complained of should also be enclosed;
  • The letter of claim should describe the nature of the remedies sought;
  • Any facts or matters which make you identifiable from the words  complained of and;
  • Details of any special facts relevant to the interpretation of the words complained of and or any particular damage caused by the words complained of.

Defendants Response to the Letter of Claim

The defendant should provide a full response to the letter as soon as reasonably possible. If the defendant considers they will not be able to respond within 14 days, or a shorter time specified in the letter, then they need to write to the claimant’s solicitor specifying when they intend to respond.

The Response needs to include the following:

  • To what extent the claim is accepted;
  • Whether anymore information is required as to the claim;
  • If the defendant accepts the claim in whole or part then the defendant needs to indicate the remedies it intends to offer;
  • If more information is required then the defendant needs to specify exactly what more information is required to enable the defendant to deal with the claim;
  • If the claim is rejected then the defendant needs to explain the reasons why its rejected and an indication of the facts on which the defendant is likely to rely on and;
  • The defendant should also include in the response to the letter, what meaning the defendant attributes to the words complained of.

Proportionality as to costs: 

Under the Defamation Pre Action Protocol both parties when considering the letter of claim and response and any subsequent steps taken need to take into account proportionality and keep costs proportionate to the nature and gravity of the case.

Alternative Dispute Resolution (ADR): 

The parties need to consider whether formal Alternative Dispute resolution would be more suitable to try and resolve the dispute. The parties may well be required to show the Court that they have considered alternative means of resolving the litigation.

The Protocol sets out that, the Courts’ consider that litigation is a last resort for claims and claims should not be issued prematurely when a settlement is actively being explored.

The Protocol does detail some examples of how the dispute could be resolved without recourse to litigation:

  • Discussion and Negotiation – Early mutual evaluation by an independent 3rd party (a lawyer experienced in the area of defamation).
  • Mediation – A form of negotiation assisted by an independent mutual party.
  • An investigation by the Press Complaint’s Commission.

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